Wednesday, April 22, 2015

Birds of a Feather: Sheriff Joe and the FBI - UPDATE

"Stunned the legal community"? Really?Well, yeah. I suppose. Maybe the mergers and acquisitions guys. Beyond that? Only for the saying of it.Oh, sorry. You have no idea what I'm talking about. I was musing over the first sentence of Eric Lander's op-ed in Tuesday's Times.

THE F.B.I. stunned the legal community on Monday with its acknowledgment that testimony by its forensic scientists about hair identification was scientifically indefensible in nearly every one of more than 250 cases reviewed.

Lander says it was no surprise to actual scientists who've known for years that nearly all of what's called "forensic science" is actually forensic bullshit. But the lawyers have known that, too. Really, anyone who's been paying attention's known it.

Lander points to a number of cases where the forensic guys told juries they were damn sure and it later turned out that they were just spinning old wives tales. Those stories, they were in all the papers. The NAS report? Been out for five years now. We've all got copies.

No, the surprise is that the FBI's admitting in broad strokes what it's quietly been acknowledging for a decade or more. They didn't know what they were talking about - and if they did, they lied.

Because it's not science. When the so-called expert would get on the witness stand and announce that he's looked at this hair and that hair and by god they came from the same person? Well, maybe. Or maybe not. Because you can't tell. I mean, it could be true. Sure. Unless you actually do something like

TEST THE FUCKING HAIR

Because you can't tell from the way hairs look.

Shall I go on?

We don't really know about fingerprints, either. Or shoe prints or tire tracks or ballistics. One study of the work of forensic bite mark experts showed that they were wrong more than 50% of the time. Get that? If they said the defendant was guilty because those were his bite marks, that was really evidence that he was probably innocent.*

But the good news is that the FBI is now reviewing a couple of thousand cases where their experts said the hair matched and the person got convicted. And in some cases executed.

And the FBI is telling the defendants. And it's making DNA tests available if the cops or the prosecutor wants them done. (If the defendant wants them? Gee, that didn't make it into the announcement.)

Hey, it's a start. Here's the next step: Let the state crime lab guys who were trained to be incompetent but pretend otherwise by the FBI own up to the fact that their hair comparison testimony was bull too. And then start undoing convictions obtained through all the other false science. All those things based on the crack work of trained lookers who say,

Gee, those look the same to me. And since I'm never wrong.

* * * * *

Meanwhile, in federal court in Arizona, Sheriff Joe owns up to the fact that he wholly ignored the court order to stop illegal roundups of everyone who looks like maybe they speak Spanish.

Yes, he said, I didn't give a shit about your fucking orders because I'm the Toughest Sheriff in America™ and get to do whatever I want. And the taxpayers are happy to pay out millions and millions to settle all the lawsuits against me because I'm the Toughest Sheriff in America.™

Which pretty much calls the question: Does the judge have the balls to lock the Sheriff up? Um, probably not. Still, this is maybe the first time Joe's actually admitted he did something he wasn't supposed to.

I suppose that's something.

Of course, Joe says he's gonna run again. For a 7th term. And he's sure not planning to do it from a jail cell.

And the FBI still sends out bogus forensic "experts." Just like your local crime lab does.

Plus ça change, plus c'est la même chose

UPDATE

Scott Greenfield rightly points out that it didn't matter that we've been screaming about the incompetent/dishonest forensic faux-science for years - and nobody gave a shit.

While we’ve been screaming about this forever, nobody cared. Nobody listened, because we aren’t trusted government officials and it’s just us criminal defense lawyers complaining about stuff, like evidence and constitutional rights, again.

That the FBI admitted it is what stunned the legal community (of which, apparently, criminal defense lawyers are too minor a part to be worthy of recognition), because they are official. Now the legal community cares. That’s stunning. Us, not so much.

----------------

*You could ask Ray Krone who was sentenced to death based on bite mark comparisons - twice. Finally, the DNA showed what he'd said all along. Wasn't him.

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About Me

Criminal defense lawyer, public defender, civil libertarian (former Legal Director of American Civil Liberties Union of Ohio), anti-death penalty activist, public speaker.
After many years in private practice, I'm now a public defender in the Cuyahoga County Public Defender's Office.
My first career was English Professor. I studied medieval and renaissance English Literature, taught literature, film, and composition. I've been a film critic.
NONE OF WHAT APPEARS IN THIS BLOG SHOULD BE TAKEN AS LEGAL ADVICE.
ALSO, PLEASE NOTE THAT THE STUFF I WRITE IS MINE ALONE. I STAND MORE OR LESS BEHIND IT, BUT I DO NOT SPEAK FOR ANY OTHER LAWYER OR ANY GROUP OF LAWYERS AND CERTAINLY NOT FOR THE OFFICE OF THE CUYAHOGA COUNTY PUBLIC DEFENDER.